On Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Criminal No. 90-00103-01.
Stapleton, Alito and Seitz, Circuit Judges.
Antonio Davis appeals from a final judgment of sentence and challenges the sentence imposed under the Federal Sentencing Guidelines. Based on concessions made by the United States at oral argument, we will vacate the sentence imposed by the district court and remand for further proceedings.
Davis was indicted in March 1990 in the Eastern District of Pennsylvania for two counts of distribution of cocaine, 21 U.S.C. § 841(a)(1), and one count of possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). Davis pled guilty to the two distribution counts under a plea agreement calling for dismissal of the possession count.
Davis's presentence report calculated his total offense level as 30, a calculation that Davis does not contest on appeal. The presentence report concluded that Davis should be awarded eight criminal history points and that his criminal history category should accordingly be category IV. This computation was based on the following three juvenile adjudications in 1987 and 1988. First, according to the presentence report, Davis was charged on February 20, 1987, in Philadelphia Family Court with theft of an automobile, receiving stolen goods, conspiracy, and criminal mischief. On July 13, 1987, the presentence report states, Davis was sentenced by Judge Summers to an indeterminate term of custody at the Glen Mills School for Juveniles.
Second, according to the presentence report, Davis was charged on March 3, 1987, with theft of an automobile, receiving stolen property, and conspiracy. The report states that following the transfer of this case from Montgomery County, Pennsylvania, where Davis was arrested, to the Philadelphia Family Court, Davis was sentenced on March 14, 1988, by Judge O'Neill to an indeterminate term at the Glen Mills School. Finally, according to the report, Davis was charged, on April 22, 1987, in Philadelphia Family Court with possession and sale of dangerous drugs and conspiracy. The report states that Davis was sentenced on July 28, 1987, by Judge Reynolds to an indeterminate term at the Glen Mills School. The presentence report states that Davis was discharged from the Glen Mills School of August 15, 1988.
For each of these juvenile adjudications, the presentence report assigned two criminal history points, citing Section 4A1.2(d)(2) of the Guidelines, which provides for the addition of two points "for each adult or juvenile sentence to confinement of at least 60 days if the defendant was released from such confinement within five years of his commencement of the instant offense." The presentence report also assigned two additional points under Section 4A1.1(e) on the ground that Davis had committed the instant offenses less than two years after his release from imprisonment for the offenses previously noted. Based upon an offense level of 30 and a criminal history category of IV, the presentence report calculated the Guideline range to be 135 to 168 months of imprisonment. The district court accepted this calculation, denied Davis's request for a downward departure, and imposed the minimum sentence within the guideline range, 135 months. This appeal followed.
We first consider Davis's argument that the district court erred in assigning two criminal history points for each of his juvenile adjudications under Section 4A1.2(d)(2)(A), which applies only to "adult or juvenile sentences to confinement of at least sixty days." Davis contends that this section pertains only to determinate sentences and that therefore his indeterminate sentences should not have been counted. We disagree with this interpretation.
Section 4A1.2(d)(2)(A) must be read together with other closely related provisions that assign criminal history points based on the length of the sentence for a prior conviction. Under Section 4A1.1(a) and (b), which apply to offenses committed by someone age 18 or older, three points are assigned for each "sentence of imprisonment" for more than one year and one month, and two points are assigned for each "sentence of imprisonment" of at least 60 days. Similarly, under Section 4A1.2(d)(1) and (2), which apply to offenses committed prior to age 18, three points are assigned for an adult "sentence of imprisonment" for more than one year and one month, and two points may be assigned for each "adult or juvenile sentence to confinement" of at least 60 days.
While all of these provisions are cast in the same basic pattern, they contain slight differences in terminology. On the one hand, Section 4A1.1(a) and (b) and Section 4A1.2(d)(1) use the phrase "sentence of imprisonment," which is defined by Section 4A1.2(b)(1) to mean "the maximum sentence imposed." See also Section 4A1.2, application note 2 ("Criminal History points are based on the sentence pronounced, not the length of time actually served.") The slightly different term employed in Section 4A1.2(d)(2) -- "sentence to confinement" -- is not defined, but we conclude, based upon the close relationship between Section 4A1.2(d)(2) and the other provisions noted above, that the same definition was meant to apply.
As previously noted, Section 4A1.2(d)(2) and the other provisions discussed above all assign criminal history points based on the length of the sentence for a prior conviction or adjudication. There is no apparent reason why the Sentencing Commission would have wanted to use one standard ("the maximum sentence imposed") to measure the length of a sentence under ...